Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (53 page)

In one of the two cases that Agnes cited to indicate that Indian courts did not grant maintenance to adulterous women until the 1980s,
Sachindra Nath Biswas v. Sm. Benamala Biswas
(1960), the woman was found to be living in adultery. The court did deny a woman maintenance based on a finding of adultery
simpliciter
in the other case,
Sardari Lal v. Mst. Vishano
(1970), but the majority of courts did not rule thus even in the 1960s and some that did so were overruled by higher courts or larger benches of the same court (for example,
Raja Gopalan v. Rajamma
(1967), which was overruled by a larger panel of the Kerala High Court in
Kaithakulangara Kunhikannan v. Nellatham Veettil Malu
(1973)).

52
. The
Yagnavalkya Smrti
was cited in:
Musunuru Nagendramma v. Musunuru Ramakotayya
(1953). This court also cited Apararka to the effect that “the Adhivinna, superseded wife, has the right to be maintained by the husband irrespective of whether she lives with her husband in his house or in the house of her parents,” and Vijnaneswara to have said that “the husband who abandons an obedient and competent, son-bearing and pleasant speaking wife, should be made to give one-third of his property to the superseded wife. If he has no property he must maintain her.”

53
. For instance, women who committed adultery with men of a lower caste, leading to their expulsion from their caste, were ruled ineligible for spousal maintenance in
Ponnayee v. Periya Mooppan
(1908);
Ram-Autar v. Mt. Raghurai
(1926); and
Yesu Bai v. Parasram
(1933). But a man living in adultery was not required to provide his wife a separate home and maintenance because he was taken to be treating her in ways compatible with her status as his wife in
Gantapalli Appalamma v. Gantapalli Yellayya
(1897).

54
.
Devyani Kantilal Shroff v. Kantilal Gamanlal Shroff
(1963) at 99;
Bhagwan Singh Sher Singh Arora v. Amar Kaur
(1962) at 145.

55
. This approach was elaborated in
Mahalingam Pillai v. Amsavalli
(1956), based on precedents such as
Simon Lakra v. Bakla
(1932) and
Phillips v. Emperor
(1935).

56
.
Mahalingam Pillai v. Amsavalli
(1956) at 298.

57
.
Sanjukta Padhan v. Laxminarayan Padhan
(1991) at 42.

58
.
Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati
(1964);
Raji Pachori v. Kamlesh Pachori
(1993);
Smt. Leela Pande v. Shri Sachendra Kumar Pande
(1994).

59
. As early as 1967, a court declined to find a married woman getting an “improper” letter from someone other than her husband a sign of adultery, in
Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivasatava
(1967).

60
.
Smt. Swayamprabha v. A. S. Chandrasekhar
(1982);
Binod Anand Lakra v. Smt. Belulah Lakra
(1982).

61
.
M. P. Subramaniyam v. T. T. Ponnakshiammal
(1958);
Bhagwan Singh Sher Singh Arora v. Amar Kaur
(1962);
Avinash Prasad Srivastava v. Smt. Chandra Mohini
(1964);
Smt. Chandra Mohini Srivastava v. Shri Avinash Prasad Srivasatava
(1967).

62
. The lovers were estranged from their respective spouses in
Devyani Kantilal Shroff
, and the woman had left her matrimonial home of her own accord and refused her
father-in-law’s invitation to leave her lover and live with her husband in
Sanjukta Padhan
.

63
. There was strong evidence of the lovers living together in
Ammasi v. Smt. Amaravathi
(1997);
Chander Kumar Sharma v. Samriti Sharma
(1998);
Angoori v. Phool Kumar
(2003); and
Subal Chandra Saha v. Pritikana Saha
(2003).

64
. Interview, Justice Aziz M. Ahmadi (author of
Vanamala
).

65
. Maintenance was granted to women involved in other relationships in
Gopi v. Smt. Krishna
(2001);
Valsaraian v. Saraswathy
(2003);
Dalip Singh v. Rajbala
(2007); and
Sadanandan, K. v. Mepparamban Sreeja
(2009). Maintenance was granted to women who were found to have deserted their husbands in
Khandu Madhu Kadbhane v. Sitabai
(2001);
Ramavtar Sharma v. Smt. Santosh
(2002);
Subhadra v. Rajendra Prasad
(2003);
Smt. Kesari Devi v. Jagdev Singh
(2005);
Sajeev Kumar v. P.Dhanya
(2008);
R. Sunitha v. Gopalakrishnan alias Unni
(2008); and
Pareshkumar Chaturdas Patel v. State of Gujarat
(2010). It was awarded to a woman divorced on the ground of her cruelty toward her husband in
Nanisseri Mukundan v. M. Usha
(2007).

66
.
Pola Venkateshwarlu v. Pola Lakshmi Devi and Ors
. (2005).

67
. Menski 2001, 115–19.

68
. Moreover, many cases of the colonial era concerned British couples—e.g.,
Wood v. Wood
(1877);
Fowle v. Fowle
(1878);
Glancy v. Glancy
(1916); only a few related to Indian couples—e.g.,
Appibai v. Khimji
(1936);
Stree v. Stree
(1935).

69
. Agnes 2011b, 41–46.

70
. Agnes 2011b, 42.

71
. The Bombay Hindu Divorce Act, 1947, applicable to the couple when the case was considered, allowed divorce based on desertion for at least four years, until it was superseded by the HMA, which allowed only judicial separation for this reason until 1976.

72
. This justification to recognize certain divorce customs was offered initially in
Kudomeo Dossee v. Joteeram Kolita
(1880) and
Lachu v. Dal Singh
(1896).

73
. Derrett 1963; Holden 2008.

74
.
Mt. Subhani v. Nawab
(1941). These standards for the recognition of custom were established in
Collector of Madura v. Moottoo Ramalinga Sethupathi
(1868).
Bai Jivatbai Jethmal v. Milkiram Deepchand
(1961) indicated that practices that have existed only for twenty years were not customary.

75
.
Mst. Bhan Kaur v. Ishar Singh
(1958);
Smt. Premanbai v. Channoolal
(1963);
Edamma v. Hussainappa
(1965);
Velayudhan Kochappi v. Sirkar
(1915);
Sankaralingam Chetti v. Subban Chetti
(1894);
Nallathangal v. Nainan Ambalam
(1959);
Keshav Hargovan v. Bai Gandhi
(1915);
Are Lachia v. Are Raja Mallu
(1964);
Gurdit Singh v. Mst. Angrez Kaur Alias Gej Kaur Alias Malan
(1967);
Tara Singh v. Shakuntala
(1974);
Asha Rani v. Gulshan Kumar
(1995);
Bhaga Bai v. Mangali Bai
(1999);
Subramani v. M. Chandralekha
(2004);
Kunwar Singh Marko v. Shiv Dayal Sarote
(1999);
Virendra Kumar v. Preeta
(2009).

76
. Holden 2008, 280 said that a woman-initiated divorce was also recognized among the Chetti potters of Tamil Nadu in
Sankaralingam Chetti v. Subban Chetti
(1894), but that judgment did not mention that the woman initiated the divorce, and (
Gedalu) Narayana v. Emperor
(1932) clarified that
Sankaralingam Chetti
dealt with a custom of mutual-consent divorce.
Velayudhan Kochappi
indicated: “the Ezhava wife is entitled to divorce her husband and take another . . . and the fact of the woman taking another husband is tantamount to her divorcing the first husband.”

77
.
Govindaraju v. Munisami Gounder
(1997) at 11; Menski 2001, 39.

78
. In
Subramani
, the court held that divorce customs existing among Nattu Gounder does not show the existence of these customs among Kongu Vellala Gounder, a closely related subcaste. However, such customs were found to exist among the latter caste in
G. P. Rajendran v. M. Valarmathi
(2008). The Supreme Court sought similar caste-specific proof in
Vidyadhari v. Sukhrana Bai
(2008) and
Mahendra Nath Yadav v. Sheela Devi
(2010). Various high courts did so, for instance, in
Edla Neelaya v. Edla Ramada alias Ramadas
(1995);
Rita Rani v. Ramesh Kumar
(1996);
Jairam Somaji More v. Sindhubai
(1999);
Sulabha v. Suseela
(2007);
Latha Kunjamma v. Anil Kumar
(2008);
Virendra Kumar v. Preeta
(2009);
Kewal Kumar v. Pawna Devi
(2010); and
Satya Devi v. State of Himachal Pradesh
(2011).

79
.
Sukri v. Khluji
(1981);
Radhakishan v. Shankarlal
(1982);
Ramkali v. Nathoosingh
(1983);
Bhaga Bai v. Mangali Bai
(1999);
Sushi Kumari v. Khairatilal
(1986);
Kunwar Singh Marko v. Shiv Dayal Sarote
(1999);
Harinarayan v. State of M.P
. (2005), discussed in Holden 2008, 164–66, 168–69.

80
. As seen in
Sushi Kumari v. Khairatilal
(1986);
Vidyadhar v. Kamlabai
(1986);
Rameshchandra Daga v. Rameshwari Daga
(2005);
Savitaben Somabhai Bhatiya v. State of Gujarat
(2005). Holden 2008, 165–68, 170. The courts granted the women maintenance in the first three cases based on recognizing the customary divorces that had ended their earlier marriages, making their current marriages valid. The woman was denied maintenance in
Savitaben
insofar as she was the man’s second concurrent wife, but the man paid 200,000 rupees to cover their child’s maintenance, which would have benefited the woman too since she had custody of the child.

81
.
Thangammal v. Gengayammal
(1945);
Nallathangal v. Nainan Ambalam
(1959);
Smt. Premanbai v. Channoolal
(1963);
Are Lachia v. Are Raja Mallu
(1964); and
K. P. Bhargavi Amma v. C. R. Kuttikrishnan
(1965). The invalidation of customary divorce claims accompanied maintenance decrees in
Edamma v. Hussainappa
(1965); and
Tara Singh v. Shakuntala
(1974).

82
.
Rajeshbai
’s view that mistresses have the same maintenance rights as wives followed that in
Banwari Lal v. Emperor
(1914).

83
.
Kaushalyabai Dinkar Mule v. Dinkar Mahadeorao Mule
(2001);
Thiyyakandi Ramachandran v. Sheena
(2009).

84
. Chandra 1998 provided an engaging account of the varied responses to this case.

85
.
Dadaji Bhikaji v. Rukhmabai
(1885);
Dadaji Bhikaji v. Rukhmabai
(1886).

86
. This rule was the result of the opinions in
Moonshee Buzloor Ruheem v. Shumsoon-nissa Begum
(1848) and
Abdul Kadir v. Salima
(1886).

87
. PD 1955, 7247, 7258–89, 7279–80, 7515–16, 7603–4, 7626, 7635–36, 7646; Renu Chakravartty suggested the adoption of a reconciliation clause instead.

88
.
Shri Gurcharan Singh v. Shrimati Waryam Kaur
(1960);
Smt. Tirath Kaur v. Kirpal Singh
(1964);
Solomon Devasahayam Selvaraj v. Chandirah Mary
(1968);
Ratnaprabhabai Sheshrao Bhore v. Sheshrao Shankarrao Bhore
(1972);
Mrs. Swaraj Garg v. K.M.Garg
(1978);
Tarsem Lal v. Smt. Santosh
(1980).

89
.
Bai Jiva v. Narsingh Lalbhai
(1927) at 268 declared that Hindu law “even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will.”

90
.
T. Sareetha v. T. Venkata Subbiah
(1983) at 367–70, 374; Interview, Justice P.A. Choudary.

91
. Nussbaum 1999, 4, 91–93; Menski 2003, 558.

92
. Menski 2003, 558 also inaccurately claimed that Sareetha “wanted to get rid of her rustic husband once she became famous.” Agnes 2008, 244–47 understood the case better.

93
. Agnes 2011a, 25–26.

94
.
Mohan Lal v. Kalp Shikha
(1985);
Madhusudan v. Bhanumati
(1985).

95
.
Smt. Harvinder Kaur v. Harmander Singh Choudhry
(1984) at 69–70, 75, 78–81;
Smt. Saroj Rani v. Sudarshan Kumar Chadha
(1984) at 1567–69. Section 22 of the SMA, Section 36 of the Parsi Marriage and Divorce Act, and Sections 32 and 33 of the Indian Divorce Act deal with restitution of conjugal rights.

96
. In
Tarsem Lal v. Smt. Santosh
(1980) and
Dalbir Singh v. Simar Kaur Alias Simro
(2002), the court found the man’s violence (and in the first case his adultery as well) a good reason for his wife not to live with him; in
Nirmala Devi v. Pritam Singh
(1998), the man and his parents had beaten the woman, evicted her, and resisted reconciliation efforts.

97
.
Smt. Tirath Kaur v. Kirpal Singh
(1964);
Gaya Prasad v. Bhagwati
(1966);
Surinder Kaur v. Gurdeep Singh
(1973).

98
.
A. Annamalai Mudaliar v. Perumayee Ammal
(1965) at 142.

99
. The court found that the man had been cruel to his wife in
Baburao
, but felt that the relationship had deteriorated so far that it could not order the woman back to her husband even if cruelty had not been established.

100
. Agnes 2011a, 24–25; Agnes 2008, 251–55.

101
. Menski 2003, 484–542 provided an authoritative account of various precolonial traditions regarding the maintenance of married, widowed, separated, and divorced women, and indicated how colonial and postcolonial law built on these traditions. The scope of
stridhanam
was defined differently in various texts, epochs, and regions. See Agnes 1999, 14–18; S. Basu 2001, 75.